of July 4, 1997 No. 15/2
About representation of the Supreme Court of the Republic of Kazakhstan "About compliance of Article 200 of the Code of penal procedure of the Kazakh SSR of the Constitution of the Republic of Kazakhstan"
The constitutional Council of the Republic of Kazakhstan in structure: chairman Kim Yu. A., members of council of Akuyev N. I., Ikhsanova U. K., Mamonova V. V., Temirbulatov S. G., Shopin V. D., with participation of the chairman of the Supreme Court of the Republic of Kazakhstan Narikbayev M. S. considered in open session based on the subitem 2) of Item 1 of article 72 of the Constitution of the Republic of Kazakhstan, the subitem 1) of Item 2 of Article 17 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" idea of the Supreme Court of the Republic of Kazakhstan of recognition of article 200 Code of Criminal Procedure of the Kazakh SSR not of the relevant Constitution of the Republic of Kazakhstan.
Having heard the speaker member of council Temirbulatov S. G., arguments of the chairman of the Supreme Court Narikbayev M. S. and having studied production materials, the Constitutional Council of the Republic of Kazakhstan established:
In the Constitutional Council of the Republic of Kazakhstan the Supreme Court of the republic with representation signed by the chairman Narikbayev M. S. handled on June 26, 1997 request to consider question of compliance of article 200 Code of Criminal Procedure of the Kazakh SSR of the Constitution of the Republic of Kazakhstan.
The called representation of the Supreme Court was accepted the resolution of the Constitutional Council of June 27, 1997 to the constitutional production.
Follows from representation of the Supreme Court that the Ilyichevsk district court of Pavlodar returned from administrative meeting on additional investigation the criminal case ended by investigation on Tishkin V. V. accusation in crime, stipulated in Article 76-3 part 3 of the Criminal code of the Kazakh SSR. Determination of district court about return of case to additional investigation is supported by board and presidium of the Pavlodar regional court.
The judicial board on criminal cases of the Supreme Court on protest of the Attorney-General cancelled all judgments, without the consent of the accused Tishkin V. changed cognizance and sent case for new trial in one of district courts of Almaty based on Article 200 of the Code of penal procedure of the Kazakh SSR as allowing consideration of the case in court of that area in the territory of which it is finished with investigation.
This determination of judicial board regarding change of jurisdiction of the case of Tishkin V. based on violation of constitutional right of the person accused on stability of cognizance without its consent was cancelled, and proceeedings are suspended.
The specified circumstances of specific criminal case formed the basis for the appeal of the chairman of the Supreme Court to the Constitutional Council with idea of consideration of question whether there corresponds Article 200 of the Code of penal procedure of the Kazakh SSR to the subitem 3 of Item 3 of article 77 of the Constitution of the republic.
By consideration of idea of the Supreme Court of check of constitutionality of Article 200 of the Code of penal procedure the Constitutional Council proceeds from the following.
The constitutional regulation of the subitem 3 of Item 3 of Article 77 determines that it "can to nobody without its consent be changed the cognizance provided for it by the law".
The criminal procedure legislation of the republic contains regulations according to which hearing of cases in the relevant courts depending on their category - the article 195, of 196 and 197 Codes of Criminal Procedure of the Kazakh SSR, and also hearing of cases is determined by the place of crime execution - article 200 Code of Criminal Procedure.
Other regulations of the Code of penal procedure of the republic do not determine cognizance of cases, and establish only procedure and conditions of change provided by the listed articles Codes of Criminal Procedure of cognizance of criminal cases.
As in the analyzed constitutional regulation the phrase "the cognizance provided for it by the law" is understood as the cognizance provided by the relevant articles of the Code of penal procedure, the listed articles Codes of Criminal Procedure - 195, 196, 197 and 200 - treat the concept "the cognizance provided by the law" fixed in the called Constitution regulation.
Therefore, the provision enshrined in the subitem 3 of Item 3 of article 77 of the Constitution has the logical continuation and the right regulating development in the relevant articles of the Code of penal procedure including in Article 200, determining that "case is subject to consideration of that court around which activities the crime is committed. If it is impossible to determine the place of crime execution, case is jurisdictional to that court around which activities it is initiated or finished with investigation".
It is necessary to recognize reasonable approval of the Supreme Court that the regulation of the subitem 3 of Item 3 of article 77 of the Constitution is blanket, that is sending to the specific law establishing cognizance. Article 200 Code of Criminal Procedure is one of regulations of the called specific law.
Thus, the regulation of the Code of penal procedure establishing transfer of criminal case for consideration of court of that area where the crime is committed, and in case of impossibility to determine the place of crime execution in court by the place of excitement or end of investigation, does not contradict the constitutional provision enshrined in the subitem 3 of Item 3 of Article 77, and does not violate constitutional right of the person accused on stability of cognizance without its consent.
Resolving question of compliance of Article 200 of the Code of penal procedure to Constitution regulations, the Constitutional Council at the same time does not consider correctness of application of the called regulation of the procedural law on specific case of Tishkin V. V. as it does not enter its competence.
Based on stated and being guided by Item 2 of article 72 of the Constitution of the Republic of Kazakhstan, Articles 33, of 37, 38 Presidential decrees of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council decided:
1. To recognize Article 200 of the Code of penal procedure of the Kazakh SSR the relevant Constitution of the Republic of Kazakhstan.
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